Congress Requires State/Local Rubber Stamp Approval of Some Wireless Tower Modifications

Posted on February 22, 2012 by Donald Evans

Payroll tax cut extension law gives modest relief to wireless tower industry; Congress to localities: States’ rights? What states’ rights?  

In a little noticed section of the landmark Middle Class Tax Relief and Job Creation Act, Congress has thrown the wireless industry – or, more specifically, the folks who build towers for the wireless industry – a small measure of relief in the on-going struggle to get tower modifications approved and constructed. Buried in a collection of odds and ends dumped, seemingly as afterthoughts, at the end of the law, Section 6409 requires state and local governments to approve modifications of wireless towers and base stations as long as those modifications don’t substantially change the dimensions of the existing structures.

The wireless industry has long complained that local authorities hold up approval of new tower construction either out of either misplaced concern for interference issues or simply as a revenue-generating mechanism. That problem has increasingly spread to tower modifications as well.

The streamlining of needed approvals is a big inducement to licensees to collocate on existing structures, saving considerable time and money in getting a station up and operating. Most federal rules properly treat minor modifications of existing structures as non-events that require little or nothing in the way of prior approvals. Local authorities, by contrast, have come to see such collocation applications as an additional opportunity to interpose themselves into the process, usually not to the financial or operational benefit of the carriers.

Congress moved to correct this abuse. In Section 6409 it simply pre-empts states and local authorities from being able to deny eligible facilities requests, i.e., requests involving:

  • the collocation of new transmission equipment;
  • the removal of transmission equipment; or
  • the replacement of transmission equipment.  

Once the President signs the act into law, these seemingly innocuous alterations of existing structures will be safe from state and local meddling.  (The law does leave all applicable environmental rules with respect to such towers in effect.)

At least two questions remain.

First, the legislative history is largely silent as to any basis for the law’s pre-emptive action.   Normally, Congress is reluctant to pre-empt traditional local prerogatives without having built a strong rationale for the action. Since zoning laws have traditionally fallen within the province of cities and counties, Congress appears to be taking a large step into murky, and potentially dangerous, jurisdictional waters.  

Second, this section of the Act applies to “wireless towers and base stations”. Neither term is defined here or anywhere else in the Communications Act. Do “wireless towers” include broadcast towers, which of course transmit their content wirelessly?  If so, this would add a large set of towers to the protected mix. Some broadcast towers, of course, simultaneously serve, or can serve, as towers for wireless communications carriers. The legislative history suggests that Congress had in mind “cellular towers” when it referred to “wireless towers”, but the law itself includes no such limitation. The scriptural exegesis of this point will no doubt put many a lawyer’s offspring through private school in the years ahead.

Section 6409 also extends another apparent helping hand to the tower industry. It provides that agencies of the Federal government “may” grant an easement or right-of-way to applicants seeking to install wireless service antenna structures on Federal property. While the thought here was nice, the absence of a mandate to permit the easement (i.e., the critical use of “may” rather than “shall”) pretty much leaves such things where they were: in the hands of sometimes quixotic bureaucrats. 

The law recognizes that a maze of different Federal agencies have been imposing a farrago of widely varying tower siting application requirements on hapless applicants.   To rationalize the process, Congress has now mandated the development of a single government-wide form for siting applications and a standard contract for facilities sited on Federal property.  This seemingly small step could simplify enormously the process of securing rights to construct towers on Federal properties. 

These modest measures, together with the recent upholding of the FCC’s “shot clock” rules, should put at least a small smile on the faces of tower constructors.
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FCC "Shot Clock" Presumptions for Wireless Tower Permitting Upheld

Posted on January 27, 2012 by Donald Evans

Less than hard-and-fast 90- and 150-day time limits for state/local actions on wireless tower permit requests affirmed

Cellular tower builders and wireless companies can breathe a sigh of relief: the “shot clock” presumptions imposed by the FCC on local government permitting processes have been upheld by the U.S. Court of Appeals for the Fifth Circuit. As a result, those presumptions – i.e., that state and local officials should ordinarily take no more than 90 days to act on wireless “collocation” applications and 150 days to act on all other wireless siting applications – remain in effect. But in affirming the Commission’s judgment in the face of challenges brought by two Texas communities, the Fifth Circuit acknowledged that local governments may still be able to rebut the presumptions – and, thus, drag out the permitting process – in individual cases.

The issue of local foot-dragging in antenna siting processes got on the Congressional agenda back in the 1990s. Out of concern that local governments might be reluctant to authorize new or modified transmission facilities in their particular bailiwicks (can you spell NIMBY?) and that such reluctance might in turn stymie the spread of wireless services, Congress weighed in. In the 1996 Telecom Act, Congress required that state and local governments act on requests to “place, construct, or modify” wireless facilities “within a reasonable period of time” after the filing of such requests. 

That statutory mandate, however, proved less than effective because – here’s a surprise – tower builders, wireless operators and municipalities tended to differ over what constituted a “reasonable period of time”. Is a year too short? Is ten years too long? In 2008, more than a decade after the 1996 Telecom Act, CTIA-The Wireless Association® asked the Commission to tie down the concept of “reasonableness” a bit tighter than Congress had. 

After soliciting and considering a broad range of comments, the Commission obliged.

As far as the FCC was concerned, “reasonable” here meant that local governments should be expected to take no more than 90 days to act on collocation requests and 150 days to act on all other requests. In this context, “collocation requests” involve modifications to already existing wireless facilities, including addition of an antenna to an existing tower as long as the change doesn’t involve a “substantial increase in the size of the tower”.

So the pressure is on for localities to act on wireless siting proposals: if they don’t meet the Commission-imposed time limits, the siting proponents have a prima facie argument that the locality is in violation of the Communications Act. That immediately puts the locality on the defensive (although, since the “shot clock” time frames are just presumptions, the local governments do have the opportunity to try to rebut those presumptions).

The Texas municipalities of San Antonio and Arlington challenged the Commission’s declaratory order on a number of grounds, both procedural and substantive. The Fifth Circuit had little trouble brushing all the quibbles aside. 

Actually, the Court needed brush only Arlington’s quibbles aside. In a ruling of key interest to communications law practitioners, the Court dismissed San Antonio’s petition. San Antonio, which did not seek reconsideration at the Commission, did not file its own request for judicial review until after the FCC had disposed of others’ petitions for reconsideration. Too late: the Court reasoned that San Antonio’s time for seeking review ran from the original FCC action date, not the date of FCC action on the reconsideration petitions.   Since the action on those petitions simply affirmed the original decision, the FCC’s reconsideration action was not a separate and independent event opening a new opportunity for appeal by San Antonio.   These procedural niceties keep lawyers awake at night but have the opposite effect on lay readers, so we won’t discuss them further here. The net result was that a couple of arguments raised by San Antonio but not by Arlington could be ignored by the Court.

With respect to the nitty-gritty substantive issue in the case – i.e., are the 90 and 150 day limits valid? – the Court concluded that the FCC’s judgment was reasonable and entitled to the level of deference courts normally afford agency decisions (at least when the judges can make sense out of the agency’s reasoning). Importantly, the Court observed that the FCC’s “shot clock” limits are not absolute. That is, failure by a local government to meet those time limits does not automatically mean that that locality has per se violated the 1996 Telecom Act. Rather, it merely means that the burden shifts to the locality to explain its failure to meet the applicable deadline. Such explanations might, in the Court’s view, hinge on “extenuating circumstances”, or possibly on the wireless applicant’s own failure to submit requested information.  Alternatively, the local government might note that it was acting diligently in its consideration of an application, that the necessity of complying with applicable environmental regulations occasioned the delay, or that the application was particularly complex in its nature or scope. Essentially, the Court seemed to view the Commission’s 90/150-day limits as guidelines, entitled to deference but not absolutely and irrevocably binding in all circumstances.

To get to that point, the Court made reasonably quick work of a variety of procedural complaints advanced by Arlington. While the Commission’s method of dealing with CTIA’s initial request may not have conformed precisely with requirements of the Administrative Procedure Act – when it adopted its declaratory order, was the FCC engaging in “rulemaking”, “adjudication”, or some other activity? – the Court concluded that any FCC deviation from the procedural straight-and-narrow was harmless.

The Court did spend a fair amount of time grappling with Arlington’s argument that Congress hadn’t given the Commission the authority to put specific limits on the “reasonable period of time” language in the 1996 Telecom Act. Truth be told, the scope of the FCC’s authority is not at all clear here, but the Court determined that the statute, and the legislative history underlying it, were ambiguous. Given that ambiguity, the Court concluded that the FCC was entitled to do what it had done below. And, as noted above, the Court was inclined to defer to the Commission’s substantive determination.

Where, then, does the Court’s decision leave us? Wireless operators and/or tower companies are entitled to assume that, once they have filed all information required by a local jurisdiction, the jurisdiction will act on their siting applications within the applicable 90- or 150-day time period. If the local government drags its feet beyond that time frame, the aggrieved party may seek judicial intervention because of the locality’s failure to meet the FCC’s presumptive time limits. The threat of such litigation might be enough to cause the local officials to act on the construction proposal – but there’s no guarantee of that. As the Fifth Circuit seemed to emphasize, the locality could still cling successfully to a variety of excuses or explanations for its tardiness. In the end, the siting proponent will have the burden of persuading the court that the locality’s delay has been unreasonable.

Nevertheless, at least we have a clear starting point with which to mark the approximate outlines of local governmental delay. Ideally, that will prove useful to all concerned.
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